MUDANNAYAKALAGE CHAMINDA PUSHPA KUMARA v. DIRECTOR OF IMMIGRATION

HCAL 839/2021

[2021] HKCFI 2809

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 839 of 2021

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only; or
	consideration of documents and Applicant being present in open court;

1.      Leave to apply for Judicial Review be refused; and

2.      A Restricted Proceedings Order (RPO) be made against the applicant.

Observations for the Applicant:

THE APPLICATION

1.     Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Director of Immigration and the decision in respect of which relief is sought is the Director’s Notice of Decision dated 17 May 2021 (the “Director’s Decision”).

2.  This is the applicant’s application for leave to file the application for judicial review of the Director’s Decision refusing his application for a subsequent claim of HCAL 417 of 2017 (the “original claim”) under section 37ZO of the Immigration Ordinance, Cap. 115 (“the Ordinance”).

3.     The Court, upon its own motion, has called upon the applicant to appear before it to show cause why the Court should not make a restricted proceedings order (“RPO”) against him since there is evidence to show that if unrestricted, the applicant may take out further proceedings to assert his non-refoulement claim on the same facts of the case, thereby abusing the legal process.

The procedural history

4.     The applicant is an illegal immigrant from Sri Lanka. His non-refoulement claim was received on 9 January 2008 by the Immigration Department on the grounds of Torture risk under the Ordinance, the BOR 3 risk under Article 3 of the Bill of Rights Ordinance and Persecution risk under the Refugee Convention. He subsequently lodged his claim on BOR 2 risk, Right to Life under Article 2 of the Bill of Rights Ordinance.

5.     His claim was rejected by the Director by Notice of Decision dated 30 November 2015 (the “Director’s Decision”) and Notice of Further Decision dated 19 June 2017 (the “Director’s Further Decision”).

6.     He appealed against the Director’s Decision to the Torture Claim Board (the “Board”). By its Decision dated 27 April 2017 (the “Board’s Decision”), the Board rejected his appeal. His appeal against the Director’s Further Decision was dismissed by the Board by its Decision on 20 January 2020.

7.     He applied for leave for judicial review of the Board’s Decision and the application was rejected by the Court by its Order dated 23 March 2018.

8.     He appealed against the Court’s Order to the Court of Appeal and his appeal was dismissed on 18 July 2018.

9.     He applied by notice of motion for leave to appeal against the Court of Appeal’s decision to the Court of Final Appeal and his application was dismissed by the Court of Appeal on 16 November 2018.

10.     His appeal to the Court of Final Appeal against the Court of Appeal’s decision was dismissed by the Court of Final Appeal on 8 January 2020.

11.     He applied to the Director for subsequent claim by letter 17 January 2020 and was rejected by the Director’s Decision.

The subsequent claim application

12.     The factual basis of his original claim is that if he is refouled, he would be harmed or killed by (1) The Sri Lanka Navy because he had deserted the Navy, and (2) Mr. Duminda Silva and/or his followers from the United National Party because they sought revenge against him.

13.     The Director found that the level of risk of being harmed or killed by his enemy if he returned to Sri Lanka was assessed to be low because according to the country of origin information, the Sri Lankan government declared general amnesty for army and navy deserters in regular intervals.  As to risk from Duminda, the evidence showed that he was not the target of Duminda.  His fear was only his speculation without any ground.

14.     The Board affirmed the Director’s Decision.  The Board further found that there was no substantial ground for believing that he had been in the past, or would be in the future, if he returned to his country, be subjected to torture risk, BOR 3 risk or Persecution risk.

15.     Under section 37ZO of the Ordinance, he has to satisfy the immigration officer that there has been a significant change of circumstances since the previous claim was finally determined or withdrawn and such change of circumstances, when taken together with the material previously submitted, would give the subsequent claim a realistic prospect of success.

16.     The applicant relies upon the fact that Duminda would be released from prison and he would be in danger if he returned to Sir Lanka. He had also submitted a number of newspaper cuttings to support his case.

17.     The immigration officer has considered his circumstances and considered that those are not new risks of danger to his life if he returns to Sri Lanka. The immigration officer disagrees that those are the changed circumstances since his original claim was finally determined. This means he is re-litigating his original claim.

The application for leave to apply for judicial review of the Director’s Decision

18.     The applicant has filed an affirmation in support of his application, stating that his case is a genuine case for non-refoulement. He considers that the Director was wrong to have reached his decision without understanding his dangerous situation. He also complains that he was not given a chance to go to the Torture Claim Appeal Board to appeal against the Director’s Decision.

19.     The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, he asked the Court to give him a chance.

20.     The Director is entitled to reach his conclusion after considering his evidence as he did in this case. That he was not given the chance to appeal to the Torture Claims Appeal Board is provided under the law. The Board had adjudicated the facts on the original claim. The immigration officer has the power to determine whether the new materials constitute changed circumstances after the determination of his original claim. There is nothing amiss on the procedural law. The applicant has raised no valid challenge to the Director’s Decision or finding of the facts.

21.     It is quite clear that the applicant is re-litigating his original claim in his subsequent claim application.

22.     The Court does not find any error of law or procedural unfairness in the Director’s Decision. The Director’s finding of the facts is not in any respect open to challenge as Wednesbury unreasonable or irrational.

23.     Since there is no reasonable prospect of success in his subsequent claim, I dismiss his application for leave to apply for judicial review of the Director’s Decision.

The RPO

24.     The Director’s findings show that the applicant is attempting to re-litigate the facts in support of his claim for a subsequent claim, which will amount to an abuse of the process. The Court has the inherent jurisdiction to prevent the applicant from abusing its process by making a RPO and the extended order against him. See paragraphs 7 & 8 of the judgment of the Court of Final Appeal in Ng Yat Chi v Max Share Limited and China Resources (Holdings) Company Limited (2005) 8 HKCFAR 1.

25.     RPO is appropriate for the present case. See The Secretary for Justice v Yuen Oi Yee Lisa, alias Lisa Yuen, Lisa Lee and another [2006] 1 HKLRD 679, Re Wahyuni v Director of Immigration [2021] HKCFI 1991, by Hon. Chow JA (sitting as an additional judge of the Court of First Instance), 6 July 2021, § 9 and Re Uddin Borhan v Director of Immigration [2021] HKCFI 2129, § 25.

26.     In my view, the fact that the applicant is entitled to apply for subsequent claim under section 37ZO of the Ordinance and that this is his first attempt is irrelevant so far as his intention is clearly an abuse of the process. The application should be viewed together with the procedural history of the case.

27.     For this reason, the Court has called upon the applicant to appear before it to show cause why an order of restricted proceedings (“RPO”) should not be made against him. The applicant has been explained the proposed restricted proceedings order before this hearing.

28.     Upon being requested to show cause why the Court should not make the RPO against him, the applicant asked the Court to give him a chance.

29.     Having considered the applicant’s explanation, I am satisfied that, if not restrained, it is likely that the applicant would proceed with this application and other proceedings for the sole purpose of remaining in Hong Kong only. I shall therefore make the RPO in terms below:

(1)     The Applicant be prohibited from commencing any fresh proceedings by whatever originating process, or continuing any existing legal proceedings, relating to any non-refoulement claim of the Applicant in the High Court, without leave of the Court of First Instance.

(2)     All applications for leave under paragraph (1) shall be made to the Judge in charge of the Constitutional and Administrative Law List or such other Judge as may be designated by the Chief Judge of the High Court to hear cases in the Constitutional and Administrative Law List.

(3)     At least 7 days before filing any application for leave under paragraph (1), the Applicant do notify in writing each intended defendant or respondent of his intention to make such application, enclosing a copy of the draft document by which the fresh proceedings are intended to be commenced, and if any response is received by the Applicant from any such intended defendant or respondent, that the Applicant do file a copy of each such response together with the said application for leave.

(4)     Any intended defendant or respondent having notice of such intended proceedings be entitled but under no obligation to place before the court written representations regarding the same.

(5)     All applications made pursuant to this order and all ancillary matters be dealt with by the court on paper and without any oral hearing unless the designated Judge should otherwise direct.

(6)     If the Applicant should issue fresh proceedings falling or which may fall within the terms of paragraph (1) without first seeking the court’s leave, and if such fact should come to the notice of the Registrar of the High Court or any Master or Judge, such fresh proceedings be referred to the designated Judge for a decision as to whether they should be permitted to continue or should be dismissed.

(7)     Notice of each decision by the designated Judge made pursuant to this order be given in writing to the Applicant and to each intended defendant or respondent named in the fresh proceedings.

(8)     Whether or not any fresh proceedings are brought to the notice of the designated Judge, if a defendant or respondent is served with such proceedings without the relevant documents being accompanied by either an order granting leave to commence such proceedings or a direction that leave to commence such proceedings is not required, such defendant or respondent be entitled to make no response to such service pending notification of the court’s decision in relation to those proceedings; and that time for acknowledging service or for otherwise responding to such proceedings be deemed extended accordingly.

(9)     No more than one leave application under paragraph (1) may be made by the Applicant within any period of 3 months.

(10)     This order shall cease to have effect at the end of 5 years from the date of this order.

(11)     A copy of this Order shall be sent to the Registrar of the High Court.

DISPOSITION

30.     The applicant’s application is dismissed.

31.     RPO in terms of paragraph 29 be made against the applicant.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1